behind the scenes —

Prosecutors’ deal for Swartz: Felony plea and three months in jail

Prosecutors say Swartz's manifesto showed "malicious intent."

At a closed-door hearing on Capitol Hill, Department of Justice officials explained the deal they offered Internet activist Aaron Swartz: three months imprisonment if he pleaded guilty to felony charges.

That's far less time than the 35 years they could have charged, but it was still a large threat and possibly contributed to overwhelming stresses that drove Swartz to suicide last month. Swartz was being prosecuted for downloading academic documents through MIT's campus network. He had previously been hunted by federal agents for "liberating" federal court documents, but that investigation didn't result in charges.

While they offered a relatively short sentence, prosecutors were absolutely determined to get a felony plea and some kind of prison time, according to sources cited by The Huffington Post. They wanted those results because they believed it would justify their bringing charges in the first place, according to HuffPo.

The plea deal was offered in the early stages of the prosecution and it would have been structured to allow Swartz's lawyer to still argue to the judge that no prison time would have been appropriate.

The HuffPo report also discloses that Justice Department lawyers believed Swartz's "Guerrilla Open Access Manifesto" justified their bringing of felony charges because it demonstrated his "malicious intent" in massive downloading. The US attorney who authorized the Swartz prosecution, Carmen Ortiz, has been steadfast in maintaining that her office did the right thing.

In the manifesto, Swartz wrote in part:

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that's out of copyright and add it to the archive... We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access."

338 Reader Comments

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

He would have a felony conviction on his record. That is the much bigger deal than three months in jail.

He could not have accepted a plea bargain for any jail time due to fact that a plea bargain would have undermined his goal of civil disobedience. His main goal should have been to plead not guilty and accept the punishments and show that they were unjust for the "crime" he did. So technically any plea bargain would have been irrelevant and judges tend to throw the book at those who refuse to plead guilty

So whats new about this? This is exactly the same thing thats been known from the day this became a story, ie his suicide which people conveniently blamed on the EVAL GUBERMINT because its far better to blame a burocrat than to face up to their own failings as parents, friends and family or, worse, the person who couldnt live with his depression anymore.

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

First, the felony charge is huge.Second, the fact that it's 35 years vs. 3 months just shows that the prosecutor was being a overreaching bully.

What the government effectively did with Swartz’ Guerilla Manifesto, at least in that brief, was use it to justify the way they had investigated him, including this bizarre 6 week delay, prioritizing investigating his house before actually investigating the hardware that served as best evidence of any crime.

While they didn’t say so in as many words, the brief the government submitted — arguing that this delay shouldn’t result in suppression of the evidence collected in this odd investigation — basically says the Manifesto makes the delay okay.

That is, an investigative approach that might otherwise result in the best evidence be thrown out was okay, the government argued, because Swartz wrote a document advocating for the largely legal but nevertheless incriminating, it claimed, sharing of information.

Quote:

DOJ told Congress it believed the Manifesto would prove motive — that Swartz planned to share the journals widely. But that only underscores that had he used them for his own purposes — to collect data on who funded what studies and what kind of results they produced, as he had in the past — they would have had a hard time claiming this was a crime at all.

It appears that, only by researching the Manifesto, a First Amendment protected publication that largely espoused legal information sharing, did the government even get around to treating this as a crime.

So the penalty for exercising your right to a trial and for not accepting the prosecution's interpretation of the statutes is 34 years and 9 months in jail?

Yes and no. It's a question of what he'd have been convicted on, and what the judge would have gone with when sentencing.

But yes, in general that is the "penalty" you face for insisting on a trial...you face the full penalties for the crimes of which you are accused. Duh.

I'd agree that high-stakes plea bargaining is a bad thing for our system in general, though.

reflex-croft wrote:

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

You have to consider that he wasn't entirely mentally healthy going into the ordeal. At which point it's understandable that even a short sentence or felony conviction might send him over the edge.

From his record, he didn't have a career. His history is a history of being a quitter in almost everything. Stanford, Reddit/Conde Nest/Wired, etc. This is of course tied into his well-know issue of mental illness. That's not uncommon in silicon valley, starting a project in the manic phase and then withdrew in the depressive phase. Rinse and repeat.

We can only speculate what he would do in the future. But how would felon status impact his career until the time of his death? No so much.

So the penalty for exercising your right to a trial and for not accepting the prosecution's interpretation of the statutes is 34 years and 9 months in jail?

Yes, he was totally convicted of that...

Do I need to add a gigantic facepalm or can you manage that one yourself?

He died rather than face the prospect, genius.

He killed himself, yes, whether the prospect of any jail time (he had very good lawyers and an appeals process as well) had anything to do with it is your unsubstantiated assertion.

He didn't have the money for the lawyers. But yeah, the stress of a long court battle you can't afford, two years in with no end in sight, and being threatened with 35 years in jail had nothing whatsoever to do with his suicide.

From his record, he didn't have a career. His history is a history of being a quitter in almost everything. Stanford, Reddit/Conde Nest/Wired, etc. This is of course tied into his well-know issue of mental illness. That's not uncommon in silicon valley, starting a project in the manic phase and then withdrew in the depressive phase. Rinse and repeat.

I was surprised that someone so well-spoken and well-written did not leave a statement of his intent, and that we are left with the assertions of motive from his girlfriend, Taren Stinebrickner-Kauffman.

I haven't trusted her or her organization SumOfUs since they got caught manipulating their petitions.

This. Among the things he'd have would be restrictions on voting - (MA may permit felons to vote upon release from prison, but many states don't permit felons to vote again until completion of probation and/or parole. Four states don't permit felons from ever voting again.

Additionally, someone convicted of a felony is prohibited from owning firearms (for life in many states), or from ever serving on a jury, or holding public office. Convicted felons become ineligible to apply for state employment or employment contracts in many states. Several professional licenses are barred to convicted felons (such as being an attorney). The same is also true at the federal level - in fact, several of the restrictions imposed by a felony conviction at the Federal level will override less restrictive ones at the state level.

Also, a Federal felony conviction allows the sentencing judge the right to impose future employment restrictions if there's a "a reasonably direct relationship" between the criminal conviction and the field of employment. That's how Kevin Mitnick was banned from owning any technological device other than a landline phone when released from prison (which, in his case, he was eventually able to overturn in court).

The procecutor's office can say as much as they like about how Aaron Schwartz was only facing 3 months in prison under the deal they offered, but fact is the judge was under no requirement to accept the sentencing recommendation, and even if it was accepted, the felony conviction would continue punishing Schwartz well after he got out of prison.

He would have a felony conviction on his record. That is the much bigger deal than three months in jail.

It would effectively destroy his career while he was still young.

Actually, because he was so young and had apparently had no prior record, it really would not have been much of a barrier to his getting a good job with a tech company later on--it was a non-violent felony that did not carry the same kind of moral turpitude stigma that embezzlement, for instance, would have carried. Swartz could have parlayed his position into something really meaningful and lucrative for himself further down the line had he cared to do so (a book for starters), not the least of which would have eventually been full restoration of all of his Constitutional rights. He could have stuck around to fight & push & work for the changes he wanted to see. Obviously, Swartz did not care to hang around for any of that.

Swartz killed Swartz; it is no more complicated than that. Tragically, people his age and younger murder themselves much too often, and many of them have no brush with authority at all. Why they do it is beyond me. All the rest of us can do is be thankful when these individuals don't murder other people along the way as often happens in these cases. But, I do know the government was not involved in his death. The government offered him a plea-bargain for a felony he committed and then admitted that amounted to a slap on the wrist. Last but not least, Swartz was mea culpa all the way from day one.

OTOH, it's the government's job to punish lawbreakers. They don't make the laws--they just try and enforce the ones it is possible for them to enforce. Swartz gave them little choice--but at least they gave him a choice that the vast majority of people in his shoes could have easily lived with. Would have rejoiced in getting, actually. I have a difficult time believing these problems were the reason he took his own life--most likely, these problems were only symptomatic of the actual reasons that he murdered himself (and premeditated self-murder is exactly what suicide is.) None of us will ever know those reasons and so speculating on them is pointless, as is putting the blame on anyone else besides Swartz himself. And that is the real pity of it all: if he ever had something of real value and worth to contribute we will never know what it might have been because Swartz made sure of that himself.

This. Among the things he'd have would be restrictions on voting - (MA may permit felons to vote upon release from prison, but many states don't permit felons to vote again until completion of probation and/or parole. Four states don't permit felons from ever voting again.

Additionally, someone convicted of a felony is prohibited from owning firearms (for life in many states), or from ever serving on a jury, or holding public office. Convicted felons become ineligible to apply for state employment or employment contracts in many states. Several professional licenses are barred to convicted felons (such as being an attorney). The same is also true at the federal level - in fact, several of the restrictions imposed by a felony conviction at the Federal level will override less restrictive ones at the state level.

Also, a Federal felony conviction allows the sentencing judge the right to impose future employment restrictions if there's a "a reasonably direct relationship" between the criminal conviction and the field of employment. That's how Kevin Mitnick was banned from owning any technological device other than a landline phone when released from prison (which, in his case, he was eventually able to overturn in court).

The procecutor's office can say as much as they like about how Aaron Schwartz was only facing 3 months in prison under the deal they offered, but fact is the judge was under no requirement to accept the sentencing recommendation, and even if it was accepted, the felony conviction would continue punishing Schwartz well after he got out of prison.

Good point on the recommendation. The obvious example here is Roman Polanski; part of the reason he fled the country was that (IIRC) he had reason to believe the judge was not going to follow the sentencing recommendation in his plea. Which is entirely within the judge's discretion (it's part of the plea agreement...you admit guilt only in exchange for the recommendation, however it is not a guarantee that this will be your sentence).

For the rest, though...yeah, you still have to consider that anybody who decides death is the preferable alternative to not being able to vote or get a job at the DMV is probably dealing with other issues. Certainly the criminal case contributed to pushing him over the edge, but it's not like he was a hapless victim there.

This. Among the things he'd have would be restrictions on voting - (MA may permit felons to vote upon release from prison, but many states don't permit felons to vote again until completion of probation and/or parole. Four states don't permit felons from ever voting again.

Additionally, someone convicted of a felony is prohibited from owning firearms (for life in many states), or from ever serving on a jury, or holding public office. Convicted felons become ineligible to apply for state employment or employment contracts in many states. Several professional licenses are barred to convicted felons (such as being an attorney). The same is also true at the federal level - in fact, several of the restrictions imposed by a felony conviction at the Federal level will override less restrictive ones at the state level.

Also, a Federal felony conviction allows the sentencing judge the right to impose future employment restrictions if there's a "a reasonably direct relationship" between the criminal conviction and the field of employment. That's how Kevin Mitnick was banned from owning any technological device other than a landline phone when released from prison (which, in his case, he was eventually able to overturn in court).

The procecutor's office can say as much as they like about how Aaron Schwartz was only facing 3 months in prison under the deal they offered, but fact is the judge was under no requirement to accept the sentencing recommendation, and even if it was accepted, the felony conviction would continue punishing Schwartz well after he got out of prison.

Good point on the recommendation. The obvious example here is Roman Polanski; part of the reason he fled the country was that (IIRC) he had reason to believe the judge was not going to follow the sentencing recommendation in his plea. Which is entirely within the judge's discretion (it's part of the plea agreement...you admit guilt only in exchange for the recommendation, however it is not a guarantee that this will be your sentence).

For the rest, though...yeah, you still have to consider that anybody who decides death is the preferable alternative to not being able to vote or get a job at the DMV is probably dealing with other issues. Certainly the criminal case contributed to pushing him over the edge, but it's not like he was a hapless victim there.

There is a lot of stuff that is incorrect here: 1) just because you are convicted of a felony, doesn't mean you can't vote. You can't vote when you are on _PAROLE_ (not probation, there is a difference), 2) when you accept a plea-bargain, the judge will give you that deal. Yes, its true the judge can do whatever he wants, but 99% he won't (OK, there is that small chance I will give you that), 3) What all this post boils down to: I am a convicted felon with a computer hacking charge. Job offers are not scarce, it is the opposite.

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

Suicide isn't a rational response to anything. It's a complex mental health issue. The reasons we don't understand why someone would do that is because our brains aren't behaving the way Swartz's did. It's not like we'll get more information and then say "oh, now I get why he committed suicide."

In previous Ars articles and beginning in this one, a lot of comments start to turn towards the "he knew what he was doing" and "stealing is stealing" type responses. I feel bad for those that really have such a black and white literal view of the world. Personally I think the views quoted from the "manifesto" are a bit naive - the kind of thing I would expect from someone who believes in their convictions and is young. However, I also think it's BS to charge him with the felonies they did. They did it "to make an example" of him and those like him. That's bullshit. The justice system is often busy making examples of people like Swartz because they can, but if you get big enough then you get a slap on the wrist or a free pass.

There may have been an opportunity to wisen up a young person to the idea that things are more complex than "all information should be free" or that there are legit and illegit methods and means of bringing out information publicly. Doing so didn't require a felony conviction and prison time.

(a) If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.

It come down to this, if we have to criminals convicted/pleaded of identical crimes:

Convicted criminal A had demonstrated that he/she is remorseful and willing to accept responsibility.

Convicted criminal B had demonstrated to be unrepentant about his/her offense and will likely re-offend once released.

Should law and society treat convicted criminal A and convicted criminal B differently? Should they receive the same sentences? I don't think so.

Convict A shows that he knows rudimentary math, so he rolls over and shows the prosecutor his belly. He tells the court what it wants to hear, and he's out that much sooner re-offending. Or fairly often convict A didn't even do it, going to court is too risky and time consuming, so he pleads to get it over with.

In any case, a plea bargain that is 1/140th of what the prosecutor will otherwise ask for is farcical, arbitrary, and capricious. It's ridiculous that prosecutors have that much unchecked power. Power that they can abuse for careerist or personal motives. In this case it's alleged they wanted a felony conviction in order to justify having laid charges at all, that is, they pursued it all costs because it would be bad for their careers and egos otherwise.

If you are going to have plea bargains, it needs to be capped at a (largish) fraction of what an individual could reasonably be expected to serve if convicted, and there needs to be a punishment for prosecutors who puff up the charge sheet with frivolous charges to extort a plea.

What about having a felony record - and one that his peers would actually have respected - would have prevented him from continuing to pursuing his career?

The guy was a techie, writer and internet activist. None of which would have been inaccessible to him with a criminal record.

I don't see how it would have had any negative impact on his career, and indeed, if anything it would have increased his cachet. You just have to look at all the glowing comments from people in the tech world to see that his professional future would not have suffered in the least.

A felony conviction certainly wouldn't have been a huge barrier to someone like Swartz. It's only a barrier for most companies if they want it to be. A tech or media company could easily overlook it, if they wanted to tap into his skills. A temporary loss of voting rights? Yes. Loss of gun ownership? Did he even own one? Government job that would require security access? Does anyone seriously think the government would hire him anyway?

Three months in jail also would be unlikely. He would get reduced time based on good behavior and overcrowding. 2 months tops. Something someone dedicated to fighting what he considered a social injustice should be willing to commit to.

At least this story OUGHT to put to rest all the "OMG 35 years!!" comments people have been making, assuming that the max sentence was the likely sentence he was looking at.

This. Among the things he'd have would be restrictions on voting - (MA may permit felons to vote upon release from prison, but many states don't permit felons to vote again until completion of probation and/or parole. Four states don't permit felons from ever voting again.

Additionally, someone convicted of a felony is prohibited from owning firearms (for life in many states), or from ever serving on a jury, or holding public office. Convicted felons become ineligible to apply for state employment or employment contracts in many states. Several professional licenses are barred to convicted felons (such as being an attorney). The same is also true at the federal level - in fact, several of the restrictions imposed by a felony conviction at the Federal level will override less restrictive ones at the state level.

Also, a Federal felony conviction allows the sentencing judge the right to impose future employment restrictions if there's a "a reasonably direct relationship" between the criminal conviction and the field of employment. That's how Kevin Mitnick was banned from owning any technological device other than a landline phone when released from prison (which, in his case, he was eventually able to overturn in court).

The procecutor's office can say as much as they like about how Aaron Schwartz was only facing 3 months in prison under the deal they offered, but fact is the judge was under no requirement to accept the sentencing recommendation, and even if it was accepted, the felony conviction would continue punishing Schwartz well after he got out of prison.

Good point on the recommendation. The obvious example here is Roman Polanski; part of the reason he fled the country was that (IIRC) he had reason to believe the judge was not going to follow the sentencing recommendation in his plea. Which is entirely within the judge's discretion (it's part of the plea agreement...you admit guilt only in exchange for the recommendation, however it is not a guarantee that this will be your sentence).

For the rest, though...yeah, you still have to consider that anybody who decides death is the preferable alternative to not being able to vote or get a job at the DMV is probably dealing with other issues. Certainly the criminal case contributed to pushing him over the edge, but it's not like he was a hapless victim there.

There is a lot of stuff that is incorrect here: 1) just because you are convicted of a felony, doesn't mean you can't vote. You can't vote when you are on _PAROLE_ (not probation, there is a difference), 2) when you accept a plea-bargain, the judge will give you that deal. Yes, its true the judge can do whatever he wants, but 99% he won't (OK, there is that small chance I will give you that), 3) What all this post boils down to: I am a convicted felon with a computer hacking charge. Job offers are not scarce, it is the opposite.

Am I incorrect in thinking that voting rights for felons vary by state? I didn't correct on that, merely because it didn't change the argument substantially. To my knowledge, some states disallow while on parole, some do so indefinitely, some allow actual prisoners to vote.

I also agree that, particularly in this case, the felony charge may well have opened some doors to compensate for those it closed. Because of the nature of his (alleged) crimes and his case, he probably would have had more opportunities (on the whole) after getting out...not less.

I was mostly commenting on the sentencing recommendation. It's true that you can generally count on it being followed...but it's not guaranteed, and somebody who is already incredibly skittish about jail time may worry disproportionately about that very real possibility.

Of course, that assume rationality, which given the suicide is already not a valid assumption.

What all this post boils down to: I am a convicted felon with a computer hacking charge. Job offers are not scarce, it is the opposite.

This.

You only have to look at the reaction to his suicide to see that the guy was a freaking hero to his peers. Anyone who thinks that a felony conviction for standing up for his beliefs in internet freedom would somehow have hurt him professionally, hasn't been paying attention. The dude would have been declared a technology "saint", and that makes his suicide all the sadder.

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

He would have a felony conviction on his record. That is the much bigger deal than three months in jail.

It would effectively destroy his career while he was still young.

You mean that career where he was effectively self-employed and living off the profits from selling Reddit to Conde-Nast?

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

He would have a felony conviction on his record. That is the much bigger deal than three months in jail.

It would effectively destroy his career while he was still young.

Seems to me that Swartz was highly principled and would have never accepted such a plea bargain because he did not believe what he did was wrong (or possibly even illegal). Someone with such strong convictions is going to have a tough time accepting a plea bargain and pleading guilty to something they do not believe is or should be a crime (in particular when they believe they are benefiting society and knowledge).

The prosecutors just don't seem to get this -- they're taking the position of 'jeeez c'mon, he would have only gotten 3 months and a felony record had he plead' except the reality was he wouldn't have accepted it, ever, and therefore really was facing the possibility of 35 years in prison.

Wow. I do not have anything against Swartz, but a key part of civil disobedience is a willingness to face the consequences. In this case, the consequences were extremely low. I do not understand the suicide, 35 years would indeed be overwhelming, but three months? Not bad at all given the charges against him. It seems like he could have used that as quite a platform for his beliefs as well.

I do not understand his drastic reaction to this situation. I really wish I did, it is such a sad loss.

First, the felony charge is huge.Second, the fact that it's 35 years vs. 3 months just shows that the prosecutor was being a overreaching bully.

No, the prosecution stated that they would have asked for 7 years if he was convicted on all counts, per the Federal Sentencing Guidelines. Ars, to their immense discredit, keeps pushing the "he was at risk of doing 35 years (or 50)" for some reason.

If you are going to have plea bargains, it needs to be capped at a (largish) fraction of what an individual could reasonably be expected to serve if convicted, and there needs to be a punishment for prosecutors who puff up the charge sheet with frivolous charges to extort a plea.

It's hard for me to say anything except how much I agree with this. The prosecutor didn't kill Aaron, but to say that they didn't contribute to it is ridiculous. It's difficult to understand why someone would choose death over life, especially when Aaron had an "out" in taking the 3 month deal, but we were not in his state of mind and were not accused of the things he was accused of. As one commenter wrote, he may not have been able to accept the deal because of principles.

We'll never really know all the answers, but it's incredibly sad that we've lost someone to the system in this way.